Only Congress has authority to lock and load
By RAMESH PONNURU | Bloomberg News | Published: September 23, 2019
After the attacks on Saudi oil fields this month, President Donald Trump tweeted, “There is reason to believe that we know the culprit, are locked and loaded depending on verification, but are waiting to hear from the Kingdom as to who they believe was the cause of this attack, and under what terms we would proceed.”
Vice President Mike Pence echoed the remark, down to the diction: “In the wake of this unprovoked attack, I promise you, we’re ready. We’re locked and loaded and we’re ready to defend the interests of our allies.”
If it is verified that Iran was behind the attack, should the U.S. take military action in response? It was an attack on the Saudis, not on America. There are no treaty obligations to treat an attack on the kingdom as an attack on the U.S. It has the means to respond itself. Striking at Iran could lead to a major military conflict and destabilize the region. This administration has not inspired confidence in its ability to manage any such conflict well.
All of these are good reasons to refrain from an aggressive response, even if, as Trump has also suggested, the Saudis would reimburse the U.S. for our trouble. We’re not their mercenaries.
But there’s another question to be answered before deciding whether to strike Iran: Who should make the decision? The answer has to be Congress. The Constitution gives the legislative branch, not the president, the power to decide whether to go to war.
Even Alexander Hamilton, the Founder most supportive of broad claims of executive authority, acknowledged the president’s limits in initiating war. In 1798, he wrote that the president had the power “to repel force by force” and “to repress hostilities within our waters.” He added, “Anything beyond this must fall under the idea of reprisals and requires the sanction of that Department which is to declare or make war.” In other words: Congress.
In an 1801 article, Hamilton argued strenuously that if another country has made war on the U.S., the president may use force without congressional approval. But he also noted that the “plain meaning” of the Constitution is that only the legislature may shift the nation from a state of peace to a state of war.
While it is true that modern presidents have tended not to acknowledge that they need congressional approval before going to war, enough of the original understanding of the proper division of authority has survived that presidents have often asked for that approval anyway. President George H.W. Bush got Congress to bless military action to drive Iraq out of Kuwait in 1991. President George W. Bush obtained congressional approval for the post-9/11 wars in Afghanistan and Iraq. President Barack Obama sought congressional authorization for military action against Syria, and stood down when that authorization was not forthcoming.
Trump administration officials have sometimes hinted, or reportedly claimed, that they believe Congress has already given them authorization to use force against Iran. The argument is that the 2001 authorization for the use of military force against those who perpetrated or aided in the 9/11 attacks covers Iran today. That law has been stretched to the point of abuse, aided by the refusal of Congress to take any action to update it. But to apply it to Iran would be absurd. It would more readily authorize attacks against Saudi Arabia, homeland of 15 of the 19 hijackers, than attacks on its behalf.
Go back to Hamilton’s distinction. An attack on Saudi oil fields is not an attack on us. It does not move us into a state of war by itself, the way an attack on America would. There is no need for immediate action. The administration is on its own account deliberating over what to do. So far it has merely tightened sanctions, a step that falls well short of war. However harsh sanctions may be in effect, they merely preclude undertaking certain economic transactions with the Iranian regime.
It would be imprudent in the extreme for Congress to bless military action against Iran to retaliate for an attack on the Saudis, but it would be constitutionally permissible. Absent congressional action, it wouldn’t be. America isn’t locked and loaded until Congress says so.
Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.